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Berk & Berk At Hunters Glen, LLC v. Township of Delran

June 14, 2007


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-467-01.

Per curiam.


Argued September 18, 2006

Before Judges Lintner, S.L. Reisner and Seltzer.

These consolidated appeals are from the decision of Judge John A. Sweeney affirming a use variance granted by defendant Delran Township Zoning Board of Adjustment (Zoning Board) to plaintiff Berk & Berk at Hunters Glen, LLC (Berk & Berk) that allowed the construction of seventy-four residential units on a property already containing a residential complex with more than 1000 existing units.*fn1 The appeals also challenge interlocutory orders entered by Judge Sweeney relating to the proper course of the litigation and the proper parties to the proceeding before him. We affirm on all appeals.*fn2

Although the history of the involved land and the procedural course of the litigation are convoluted, we recite only those facts necessary to an understanding of the issues raised by this appeal. The property for which the variances were sought was originally developed in the 1960s pursuant to a variance from the restrictions of the M-1 Limited Industrial District. In 1979, the zoning was changed to place the property in the C-3 Multifamily District subject to a restriction on further residential development. In May 2000, Berk & Berk applied to the Zoning Board for use variances to construct apartments on a ninety-one-acre site which already contained over 1100 existing apartment units.*fn3

While the variance application was before the Board, Delran (the Township or Council) adopted a new zoning ordinance in November 2000. The new ordinance changed the zoning of the existing apartment complex from C-3 Multifamily to M-2 General Industrial, making the existing structures non-conforming. When the zoning change was adopted, the Township deleted an ordinance provision that allowed, pursuant to N.J.S.A. 40:55D-17, appeals to Council from grants of use variances if taken within ten days of publication of notice of the grant. Accordingly, appeals from Zoning Board decisions were required to be made to the Superior Court. R. 4:69-1, -6(b)(3).

After hearings on July 26 and November 29, 2000, the Zoning Board denied Berk & Berk's application for a use variance for an adjacent vacant thirteen-acre lot. The transcript from the July 26, 2000, hearing has been lost or destroyed, but at the November 29, 2000, hearing, when the variance involved in this appeal was considered, Berk & Berk "adopt[ed] those parts of our testimony regarding the positive and negative criteria that appl[ied] equally, although projected, . . . to our expansion of the existing Hunters Glen Apartments." The Zoning Board agreed to "accept a reiteration of . . . testimony [from the application on the vacant parcel] and absorb it into this record" of the application for the expanded use. The record, as supplemented, indicates that the variance request was reduced to seventy-four units together with an additional sixteen additional age- or income-restricted units.

The evidence at the November 29, 2000, hearing appeared*fn4 to be that the apartment complex had suffered a partial fire loss and the new units for which the variance was sought were to be located on the site of destroyed units. The record is not clear as to whether the new units would replace in whole or in part the destroyed units. The Board ultimately approved the use variance to permit construction of "74 apartments and additions to existing buildings." The resolution was adopted December 27, 2000.

On January 8, 2001, Council adopted Ordinance No. 2000-24, which restored the provision permitting an appeal of a variance grant by the Zoning Board to Council. At the same time, Council adopted Resolution 2001-1, which resolved that the Township Council of the Township of Delran pursuant to the provisions of [N.J.S.A.] 40:69A-181(b), declares that there is an emergent need for Ordinance #2000-24 to be effective immediately upon final passage and publication of notice thereof and that said new Ordinance shall be effective [as] of the date of such actions. Thereafter, the Planning Board and a Township resident, George Yelland, filed separate appeals to Council from the variance grant. Berk & Berk responded with a six-count complaint in lieu of prerogative writs dated February 9, 2001, seeking various relief. The only issue raised by that complaint relevant to this appeal was the claim that the Planning Board appeal was invalid.*fn5 An amended complaint dated November 27, 2001, added Yelland as a defendant and a new count seeking a declaration that Ordinance 2000-24*fn6 was not effective until January 28, 2001, because no emergency justifying an immediate effective date existed.

All parties filed responding pleadings relating to the legal effect of Ordinance 2000-24 and Resolution 2000-1, including the timeliness of Berk & Berk's attack on both the ordinance and resolution. Judge Sweeney heard argument regarding the validity of Resolution 2001-1 on April 9, 2002. He concluded that Resolution 2000-1 did not describe the type of emergency contemplated by the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and, therefore, held that Ordinance 2000-24 did not become effective until after the time for appeal of the variance to Council had passed.

Nevertheless, Judge Sweeney permitted both Yelland and the Planning Board to file actions in the Superior Court to contest the variance grant within thirty days. Those pleadings were filed. On July 21, 2003, Council moved to amend its pleadings to permit it to participate as a property owner because it owned land within 200 feet of the variance site. Judge Sweeney heard argument on this application on August 21, 2003, and denied the application on the same date. On September 5, 2003, the judge heard argument on the claim that the variance constituted an arrogation by the Zoning Board of the Township's zoning authority and dismissed that claim by order dated October 2, 2003. The order also determined that neither the Township nor the Planning Board had standing to appear before the Zoning Board.

Finally, on November 20, 2003, Judge Sweeney heard argument on the merits of the claim and determined that the grant of the use variance was within the Zoning Board's discretion. Accordingly, he affirmed the variance and memorialized the decision by order of December 12, 2003. On September 30, 2004, the judge signed a consent order dismissing all remaining claims.


We consider first Judge Sweeney's treatment of the issues surrounding the claimed right to appeal the variance grant to Council and his consideration of Berk & Berk's challenge to the ordinace authorizing such an appeal. Berk & Berk's original complaint was dated February 9, 2001, and did not directly address the validity of either Ordinance 2000-24 or Resolution 2001-1, both of which were adopted on January 8, 2001. The complaint did, however, contain a count asserting that the appeal to Council was illegal. The direct challenge to the ordinance and resolution did not occur until the amended complaint, dated November 27, 2001, was filed. Defendants argue that the amended complaint was an untimely challenge to the ...

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